JURIST Guest Columnist George Williams of the University of New South Wales Faculty of Law in Sydney, Australia, says that although Australians have historically shied away from establishing a national Bill of Rights to protect individual liberties, the recent proliferation of tough Australian anti-terrorism laws strengthens the case for such a document…

Australia is the only democratic nation in the world without a national Bill of Rights. Its exceptional status is the subject of renewed debate. The catalyst has been new Australian laws responding to the threat of terrorism.

Since September 11, the Australian parliament has enacted a remarkable 40 anti-terror laws. They are extraordinary in their reach in providing for house arrest through control orders, preventive detention without charge or trial for up to two weeks, restrictions on speech through new sedition laws and even the detention of non-suspect citizens for up to a week for intelligence gathering by the Australian Security Intelligence Organization.

Some of these laws extend further than the equivalent statutes in the United States and the United Kingdom. This proved possible due to the absence of the checks and balances provided by a Bill of Rights.

Why then is Australia the exception in lacking such an instrument? The answer lies in our history. Although many think of Australia as a young country, constitutionally speaking, it is one of the oldest in the world. The Australian Constitution remains almost completely as it was when enacted in 1901, while the Constitutions of the Australian States can go back as far as the 1850s.

These constitutions were conceived at a time when human rights, with the prominent exception of the 1791 United States Bill of Rights, tended not to be protected through a single legal instrument. Certainly, there was then no such law in the United Kingdom, upon whose legal system ours is substantially based. This has changed, especially after World War II and the passage of the Universal Declaration of Human Rights 1948, but by then Australia’s system of government had been operating for decades.

Not only is the Australian constitutional system old by world terms, but it has resisted change. As far back as 1967 Australia was described by Geoffrey Sawer as ‘constitutionally speaking … the frozen continent’. This is even more applicable today, with the last successful vote to change the Constitution in 1977 when it was amended, among other things, to set a retirement age of 70 years for judges of the High Court, Australia’s top court.

The Australian Constitution was drafted and consideration given to inserting guarantees of human rights at conventions held in the 1890s. At that time, it made sense to trust that the then British traditions of the common law and responsible government would protect human rights.

There was also an additional reason why rights guarantees were not included in the new Australian Constitution. The framers sought to give the new federal and State Parliaments the power to pass racially discriminatory laws.

This is demonstrated by the drafting of certain provisions. For example, the Constitution, as drafted in 1901, said little about Indigenous peoples, but what it did say was entirely negative. Section 51(xxvi), the races power, enabled the federal Parliament to make laws with respect to ‘[t]he people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws’, while under s 127 ‘In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Common¬wealth, aboriginal natives shall not be counted’.

Section 51(xxvi) was inserted into the Constitution to allow the Commonwealth to take away the liberty and rights of sections of the community on account of their race. By today’s standards, the reasoning behind the provision was racist. Edmund Barton, Australia’s first Prime Minster and later a High Court judge, stated at the 1898 Convention in Melbourne that the power was necessary to enable the Commonwealth to ‘regulate the affairs of the people of coloured or inferior races who are in the Commonwealth’.

In a 1967 referendum Australians chose to strike out the words ‘other than the aboriginal race in any State’ in s 51(xxvi) and to delete s 127 entirely. However, the racist underpinnings of our Constitution remain.

While Australia still lacks national Bill or Charter of Rights, and the very idea is strongly resisted by our Prime Minister and federal Attorney General, there has been change at the State level.

The Victorian Charter of Human Rights and Responsibilities enacted in July 2006 is a landmark in Australia’s constitutional and political history. While it is not the nation’s first Charter of Rights, that being the Human Rights Act 2004 of the Australian Capital Territory, it is the first such instrument in an Australian State. Like the former law, it is an innovative, if modest, change to the Australian system of government in the form of an unentrenched act of parliament that protects a range of civil and political rights.

A like change is being considered in other States and is the subject of a national campaign. They are all based on the New Zealand Bill of Rights Act 1990 and the United Kingdom Human Rights Act 1998 (UK).

The United States Bill of Rights has not been as influential. It commands little political support in Australia because of a perception that it gives judges too much power in shifting contentious social issues like abortion and euthanasia away from parliaments to the courts. By contrast, many Australians remain attached to the idea of parliamentary sovereignty.

Australia’s new anti-terror laws have tipped the balance. More Australians see the need for some form of Australian Bill of Rights than was the case prior to September 11. Those laws are so extraordinary in how they affect fundamental values like no detention without trial, freedom of speech and the presumption of innocence that increasing numbers of people see a bill of rights as essential.

Sometimes the case for better human rights protection only becomes clear when rights are taken away and the lack of safeguards exposed. This is the case in Australia today. The challenge is to grasp the opportunity to see the federal Government’s overreaction to terrorism transformed into a national bill of rights.

George Williams is the Anthony Mason Professor and Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales in Sydney, Australia. He is the author of several books, including Human Rights under the Australian Constitution. His latest is What Price Security? Taking Stock of Australia’s Anti-Terror Laws.
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